185 Ky. 659 | Ky. Ct. App. | 1919
Opinion of the Court by
-Affirming.
The appellee, Central Construction Company, a corporation duly organized under the laws of this state, its chief office being in the city of Lexington and its business that of constructing streets, pavements and other public improvements, brought this action in the court below against the appellants, Mary E. Melvin and C. N. Melvin, her husband, seeking the enforcement of a municipal lien upon a lot and building on Scott avenue in the city of Lexington, owned by the former, in satisfaction of an apportionment tax or warrant amounting to $110.92, alleged to have been duly assessed against it by the governing authorities of the city of Lexington, as such property’s proportion of the cost of improving Scott avenue.
The appellants filed-a special and general demurrer to the petition, both of which were overruled by the circuit court, and to which rulings appellants entered an exception. The special demurrer was filed on the theory that the petition showed a defect of parties; appellants contending (1) that the city of Lexington was a necessary
As the general demurrer put in issue the sufficiency of the petition, it becomes necessary to determine whether its averments state a cause of action. The city of Lexington is now under what is known as the commission form of government, the governing authorities being a mayor and four commissioners, but when the work of construction upon Scott avenue was contracted and performed it was governed by the mayor and legislative body known as the general council, a body composed of a board of aldermen and a board of councilmen. So all proceedings resulting in the,improvement of Scott avenue were by action of the mayor and general council of the city; and according to.the allegations of the petition such proceedings appear to have conformed to the provisions of Ky. Stats., sections 3094 to 3100, inclusive. Indeed, this is not denied in argument by counsel for appellants. It is only insisted that the petition is deficient
We think it sufficiently appears from the allegations of the petition that appellee in constructing Scott avenue, acted by proper directions of the governing authorities of the city of Lexington; that the work was done in accordance with the plans and specifications defined by ordinance and was by ordinance duly accepted and the cost of construction properly apportioned against the various abutting properties. This being true it is clearly entitled to assert against the property of appellants the lien claimed-; hence, it follows that the general demurrer to the petition was properly overruled; After the overruling of their demurrer to the petition appellants filed an answer and counterclaim, a general demurrer to which, filed by appellee, was sustained by the court. Apappellants excepted to this ruling and refused to plead further, whereupon the court rendered -judgment, dismissing their counter-claim, granting appellee the enforcement of its lien and directing a sale of appellants’ lots in satisfaction thereof. From 'that judgment the latter have appealed.
The demurrer to the answer and counterclaim was properly sustained. The answer presented no defense, as it failed to deny the legality of the proceedings alleged in the petition whereby the construction of the street was effected by the city authorities, and only denied the right of the latter to construct a street without an opening at both ends. This was a question of law raised by the demurrer to the petition' and properly decided by the court in overruling the demurrer.
As- the record furnishes no cause for disturbing the judgment of the circuit court, it is affirmed.